In the petition, Kim Davis’s lawyers argued that her refusal to issue marriage licenses did not impose a substantial burden on the plaintiffs’ right to marry. Furthermore, they argued that Davis was entitled to qualified immunity, a doctrine that immunizes government officials from lawsuits alleging infringement of constitutional rights unless the conduct violates clearly established federal law.
The Sixth Circuit already rejected Davis’s arguments, and the Supreme Court declined to revisit the issue. Justice Clarence Thomas, in a statement joined by Justice Samuel Alito, agreed not to hear the case. However, Thomas also used his concurrence to criticize the court’s previous decision in Obergefell:
Moreover, Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss. … Obergefell was read to suggest that being a public official with traditional Christian values was legally tantamount to invidious discrimination toward homosexuals. This assessment flows directly from Obergefell‘s language, which characterized such views as “disparag[ing]” homosexuals and “diminish[ing] their personhood” through “[d]ignitary wounds.”
Thomas also criticized Sixth Circuit Judge John Bush’s concurrence in the Sixth Circuit decision, because Bush stated Davis was motivated by “anti-homosexual animus.”
Thomas’s statement caused alarm among some LGBT activists, although it is unclear whether a new court with Amy Coney Barrett would overturn Obergefell.
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